






SPEECH 



OF 




•V 


■ 

HON. JESSE 0. NORTON, OF ILLINOIS 


ON THE 


ILLINOIS CONTESTED ELECTION. 


DELIVERED 




IN THE HOUSE OF REPRESENTATIVES, JULY 17, 1856. 


COrv,, / - 


WASHINGTON: 

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1856. 





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ILLINOIS CONTESTED ELECTION. 


On the Resolutions reported from the Committee ol Elec- 

' lions in ttie Contested-Election Case from Illinois. 

Mr. NORTON said: 

Mr. Speaker: I desire to submit a few obser¬ 
vations on the matter before us; and I will strictly 
confine myself to the facts presented, after refer¬ 
ring to one or two of the positions assumed by 
my colleague, [Mr. Allen,] who has just taken 
his scat, and by the minority of the Committee 
of Elections in their r^ort. It was well said by 
the chairman of the Committee of Elections in 
his opening remarks, that this case lies within a 
very narrow compass. It is a question of fact— 
r)f fact only. That question is, whether the sit¬ 
ting member, or the contestant, has received a 
majority of the votes of the seventh congressional 
district? The sitting mentber claims that he 
received one vote more than the contestant. The 
contestant claims that he has received tw'o or three 
votes more than the sitting member. This is the 
only issue between the parties. 

Before entering upon the consideration of the 
facts presented, 1 will say a word in reply to cer¬ 
tain positions assumed by the sitting member. 
He complains that the evidence first taken was 
without proper notice given to him. It is ad¬ 
mitted that the notice was not given strictly 
within the time required, unless you include the 
day on which the notice was given. There would 
then be ten days, otherwise but nine. Under the 
strict rules of the common law', before a civil 
tribunal, I admit that the depositions might be 
ruled out, and the party required to take new 
evidence. But I submit whether this objection is 
not altogether too trivial and too technical to base 
upon it the rejection of the contestant’s claim 
to a seat upon this floor, and of the rights of the 
majority of the people of that congressional dis¬ 
trict to his services here? I care not, however, 
so far as the argument which I propose to sub¬ 
mit to this House is concerned, whether that 
evidence be considered or not. The contestant 
can be shown, by the other testimony taken, to 
be entitled to the seat. I shall confine myself to . 
testimony to which this objection does not apply.! 


Tiie other position of my colleague, and of 
the minority report, to which I would call atten¬ 
tion, is, that the contestant’s notice of his inten¬ 
tion to prosecute his claim to a seat is too general 
in its terms. The notice is as follows: 

“ Tliat tlic returns made hythe returning officers, as offi- 
11 cially announced, are incorrect, and that the poll books of 
|i the several cotjnties in this tlistriet show tliat I received a 
11 majority of the legal votes polled in the s^d district for the 
j I said office, and am entitled to the certmeate of election 
I therefrom.” 

Ij It is assumed that this notice is not sufficient 
to call the attention of the sitting member to the 
intended contestof the returns made by the judges 
and clerks of election. There are two sets of 
“ returning officers” under the laws of Illinois. 
The judges and the clerks of elections are consti¬ 
tuted one set. It is made their duty by law to 
make a return of the votes cast within four days 
after the canvass. When the county clerk receives 
the returns, it is his duty to make the returns to 
the Secretary of State. Both these classes of 
officers, under the law of Illinois, are returning 
officers. The notice referred to the “ returning 
officers” in general terms. It embraced both 
ejasses. The contestant was therefore at liberty 
to extend his investigations to both returns, or to 
confine it to one. Nothing could be clearer than 
this. This position of my colleague is therefore 
clearly untenable, besides being w holly technical. 

I now go to the question, whether or not the 
contestant or the sitting member is entitled to the 
seat in contest? The majority of the Committee 
I of Elections present the case in the true way. 
j They present two resolutions: one that the sit- 
; ting member is not, and the other that the con- 
jUestantis, entitled to the seat. I might content 
I myself with reading the certificate of the judges 
' and clerks of election, made in March, 1855, and 
I to which 1 shall again allude as conclusive of the 
! I whole case. I prefer to go into the evide'nce more 
ji in detail; and shall mainly rely on the errors found 
' in the returns in the Livingston jirccinct, though 
I may refer to some other facts if my time allow. 

I come, then, in the first place, to the question, 
Was the sitting member [Mr. Allen] elected ? 









4 


The evidence, as to errors in the returns of Liv¬ 
ingston precinct alone, shows conclusively, to 
my mind, that he is not entitled to a seat on this I 
floor. It shows clearly that he Was allowed one ! 
more vote than he actually received. He was | 
allowed forty-seven votes. The evidence shows ! 
that he actually received but forty-six votes. | 

In the first place I call attention to the evidence 
of Mr. Hutchinson, a political friend of the sitting 
member, [Mr. Allen.J It is as follows: 

“ We counted the ballots in the ballot-hox at the close of 
said election ; we then counted the names on the poll-book 
of said election, and found the number of ballots to agree 
with the number of names of voters on the poll-book ; there 
were one hundred and forty-nine of each ; there appeared 
to be at that count forty-seven for Mr. Allen, and one hun¬ 
dred for ]\Ir. Archer; the ballots were counted in the school- j 
house, in the town of Livingston, in said county, at the close 
of said election, after night; and it was supposed that said 
counting was correct, and one of the tally-papers and one 
poll book were accordingly returned to the clerk of the 
county court on the next day.” 

In response to another interrogatory, Mr. 
Hutchinson swore that “three ballots were 
thrown aside, and counted neither for Mr. Archer 
nor for Mr. Allen.” Yet forty-seven votes were 
given to Mr. Allen and one hundred to Mr. 
Archer—one hundred and fifty votes in all, when ; 
there were only one hundred and forty-nine names i 
on the poll-book and one hundred and forty-nine ! 
votes in the box. I 

David Wyrick, another of the judges, also tes-1 
tifies as to the count on the night of the election, j 
as follows: j 

“ We found, on counting the ballots, that there were one | 
hundred and forty-nine, one hundred of which were forW. j 
B. Archer, and forty-seven were for J. C. Allen; there i 
were three ballots that we considered at that time as blank | 
votes for either candidate; we found on counting the bal- 1 
lots that they agreed in number with the voters’ names on | 
the poll-books; during the counting of the votes there was j 
a confusion—the tallies did not correspond, when the votes j 
were partly recounted and corrected, as we then supposed.” , 

Then, I ask, can any reasonable mind have any ' 
question that there was a mistake committed in ! 
the Livingston district of, at least, one vote.^j 
There were only one hundred and forty-nine | 
voters’ names on the list, and one hundred and 
forty-nine ballots in the box; forty-seven votes 
were allowed to Allen, and one hundred to Archer; 
and three were not counted at all—making one 
hundred and fifty. The other witnesses testify to 
the same effect. 

The judges and the clerks were all agreed as to 
the number of votes actually polled, as to the 
number of voters’ names upon the poll-books, as 
to the numberof votes in the ballot-box, as to the 
number of votes allowed to each party, and that 
there were three votes not counted. Let us see, 
then, in whose favor the error was made. 
Hutchinson says: 

“At the second counting, there was a correction made of 
the tally at the firstcounting, by which it appeared that the ! 
clerks had made a mistake in the tally-list of one vote in j 
favor of Allen, which said vote made one more vote appear | 
than was actually given.” j 

Mr. Wyrick says, in his testimony: “There j 
had been, on the first count, one more vote tallied j 
for Mr. Allen than he actually received.” j 

Mr. Birch, another of the judges, testifies as ; 
follows: I 

“Mr. Hutchinson, one of the judges, Mr. Hanks, one of j 
the clerks, Samuel 15. Brown, who acted as clerk pro tempore 
in the absence of Mr. Hollingshead, an absent clerk, and 
myself, one of the Judges, proceeded, at my house in Liv- j 


ingston,on the 2d March, 1855, to unlock the ballot-box and 
recount said votes, having sent for Mr. Wyrick, the other 
Judge of said election, who arrived before we were done 
counting the same ; when we carel’ully recounted the nal- 
I lots, and found one hundred and forty-nine, as before, one 
: liundred and two of which were for W. B. Archer, and 
fort 3 f-six for .1. C. Allen. We now found that one more 
vote was marked for Allen than he received, or appeared 
on the tickets.” 

I But we are asked, how was this mistake made ? 
That also is settled by the testimony, which I 
will read. Mr. Hollingshead says: 

“ The ballots, after the polls were closed, were taken out 
and counted, and the lists of the voters’ names were each 
j found to be one hundred and forty-nine. In counting out 
. the votes, E. M. Hanks, one of tlie clerks, had one more 
] vote for Mr. Allen than I had, and I had one vote more for 
j Mr. Archer than he had. I told Mr. Hanks I did not hear 
! him call some time back, and told him I thought the inis- 
I take occurred about five tickets back. The judges ordered 
us to compare five tickets back, which we did, and then we 
I supposed lie was right in the count, when I marked off one 
'• vote from my tally-ptrper for W. B. Archer, and he left his 
\ stand for Mr. Allen; there were one hundred and iiarty- 
j nine votes polled at said election, one hundred of which 
; were counted for W. B. Archer, and forty-seven for J. C. 

' Allen; and that the same was so certified by us, sealed up, 
i and given into the hands of one of the Judges.” 

The testimony of Mr. Hanks is to the same 
I effect. 

I Now, then, here is the point at which the error 
! occurred. There was confusion at the end of 
j the canvass, and they concluded that it occurred 
i during the counting of the last five ballots, and 
j they went back five ballots. They erred in not 
: going back far enough. It appears that on the 
I second count on the second of March, there were 
! actually found in the ballot box but forty-six votes 
I for Allen, while at the first count he was allowed 
forty-seven. Taking this one vote from Allen, 
the tally-list, the names on the poll-books, and 
the votes in the ballot-box, all agree—being one 
hundred and forty-nine. 

j I say, then, that it has been clearly shown that 
I there was one too many votes counted upon the 
j first count. It has been shown, again, that during 
I that count there was one vote scratched off the # 
I list which had been allowed to Archer, and one 
j left on for Allen, about which the dispute arose; 

I and that on a recount on the second of Marcli, 
the ballot-box was found to contain only forty- 
six votes for Allen. Now, I appeal to the com¬ 
mon sense of gentlemen—I put it to the justice 
of this House, and to its candor, to say whether 
it is not manifest that there-was a mistake made; 
that it was made in favor of Allen, and that he 
was allowed one more vote than he actually 
received ? 

Now, let me ask gentlemen what would be the 
effect, if that alone were true, on the decision of 
this House as to this contested case ? If it be true 
that one more vote was allowed to Mr. Allen than 
i was given to him, what is the inevitable result? 
i You may say it is a small matter—but a single 
j vote; but if Mr. Allen was elected by that one 
I vote, he is as much entitled to his seat on this 
I floor, and his constituents are as much entitled 
1 to his services, as if he were elected by a majority 
I of one hundred, or one thousand. And, on the 
contrary, if he has been defeated for the lack of a 
single ballot, that one ballot becomes as import¬ 
ant as if he were defeated by one hundred or one 
thousand votes. 

But, I repeat, if it be true that Mr. Allen was 
allowed one vote more than he had received, what 























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would be the effect? Why, it would make a tie; 
and as far as Mr. Allen is concerned, he would be 
no more entitled to a seat on this floor than he 
would be had he not received a single vote at that 
election. I undertake to say, without going further 
into the testimony on that head, that, according 
to the evidence of all the judges, of all the clerks, 
given without contradiction, without conflict, 
unhesitatin^y, whatever may be the case with 
regard to Mr. Archer, Mr. Allen is not entitled 
to a seat on this floor. From this conclusion 
tliere is no possible escape. 

But the question may be asked, and has been 
asked, why, if this error was committed, it was 
not corrected at the time before the judges sent 
up the returns to the county clerk, or before the 
county clerk sent them to the Secretary of State? 
Well, sir, two of the witnesses have answered 
hat question, and I will read their testimony. 

The question was put to Mr. Wyrick, and his 
answer is: 

“ We tliouglit we had corrected it. and did not know that 
any error existed at tliattinie, nor until the 2d day of March, 
1855, when we supposed that the error was in giving Mr. 
Alien one more vote than he was entitled to.” 

Mr. Hutchinson, in answer to the same ques¬ 
tion, says: 

‘‘The mistake was not discovered at that time.” 

You may say, how was it possible that it should 
not be discovered? Why, it arose simply from 
the fact of the hurry of the count on election 
night. They did not stop to hunt up and see 
whether the aggregate number of votes allowed 
the parties, and those disallowed, corresponded 
with those found in the ballot-box. 

Mr. Birch makes a similar statement. He says 
he thought the first vote was correct. He did not j 
know any error at that time, nor till the 2d of 
March, 185.5. 

Mr. Hanks says: 

“The judges and clerks did not discover that, by giving 
.\rcher one hundred votes, and Allen forty-seven, when 
counted together with the three votes wliich were thrown 
out and not counted for either, the total vote ca.-;t, or ballots 
In the box, would be one hundred and lii’ty, or one more 
than the number of ballots counted out.” 

I come now, Mr. Speaker—having, I think, 
sufficiently shown that Mr. Allen is not entitled 
to his seat—to another branch of the inquiry; 
w'hich is, whether the contestant is entitled to a 
seat on this floor? I will read to the House the 
certificate of the judges and clerks on their second 
count; and, as I said in the outset, it seems to 
me to be conclusive of this whole case, even in¬ 
dependent of the evidence to which I have alluded 
in my preceding remarks, and the argument 
which I endeavored to base upon it. And be it 
remembered, that three out of these five men 
who made this certificate, were the political friends 
of my colleague, the sitting member—men who, 
by no possibility, could be induced to do injustice 
to him; so that it cannot be said that they were 
induced to reverse their decision on any other 
grounds than of justice, of equity, and of truth: 
State of Illinois, Clark county: 

We, the undersigned, judges and clerk of the general 
election in said county of Clark, and of Jiivingston pre¬ 
cinct, east of Marshall, on the 7th day of November last 
past, 18.54, do hefeby certify, that, on a review and count 
of the ballots this day made witli care and to our satisfac¬ 
tion—the ballots being on the said 7th of November put 
into a box, locked and kept in the hands of one of the 
judges,to wit: II. II. Hutchinson, as required by law—in 

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the return made to the clerk of the county court, we gave 
a certific.ate that William B. Archer had one hundred 
votes, and that James t^. Allen had forty-seven votes, the 
said Archer and .4111611 being the only candidates running to 
represent the seventh congressional district in said State 
of Illinois in the Congress of the United States; that we. 
find an error was made in said count and return ; and that 
it clearly appears that at said election said .\rcher truly 
received one hundred and two votes, and said Allen got 
forty-six votes, which error we now correct under our 
oaths, taken as judges and clerk, (the other clerk, Mr. 
Hollingshead, not being present this day,) one hundred and 
two (102) to said Archer, and forty-six (46) to James C. 
Allen. All of which we hereby certify under our oaths 
taken, and our hands and seals. 

HENRY H. HUTCHINSON, [i- s.l 

DAVID WYRICK, [l. s.l 

J.J. BIRCH, [L. s.l 

ELZA M. H.\NKS, Clerk. [l. s.l 

March 2, 1855. 

Now, then, I ask you whether, in the absence 
of all other testimony on the part of the contestant, 
this statement of the judges—men whose minds 
could not be biased by any political considera¬ 
tions in favor of the contestant, or against the 
sitting member—would not of itself be conclu¬ 
sive ? Mr. Allen only claims that he was elected 
I by a majority of one. This certificate from the 
judges of the Livingston precinct shows that one 
vote was improperly counted for Mr. Allen, and 
two refused to Mr. Archer, to which he was 
justly entitled, giving to Mr. Archer, on a careful 
recount, in that precinct, one hundred and two 
votes, and to Mr. Allen forty-six votes only. 
That would give Mr. Archer a majority of two 
in the second district of the State of Illinois, and 
entitle him as clearly to a seat on this floor as 
though he had a hundred, or one thousand ma- 
jority. 

I But, sir, it is said by my colleague [ r. 
j Allen] that these were not judges at the time of 
] making this certificate, though they were form¬ 
erly judges; that they were thus acting without 
authority; that their terms had expired; that 
j they, and the clerks of election, were functi officio, 
j and that they had no authority to act further in 
; reference to that election. Now, that depends 
on circumstances. It depends on the law of 
Illinois. The election act (Rev .Stat., p. 215) pro¬ 
vides as follows: 

“Sec. 8. The county commissionors’ courts shall, re¬ 
spectively, at the last staled term preceding any election, 
appoint three capable and discreet persons, po.ssessing the 
qualifications of electors, to act as judges of elections in 
each election precinct. 

“ Sec. 9. The sai(^ judges of the election shall choos-o 
two persons having similar qualifications with them.selves, 
to act as clerks of election. The said judges of the elec¬ 
tion shall be and continue judges of all elections of civil 
officers to be held within their (irecinct, until other judges 
shall be appointed, as hereinbefore directed, and the said 
clerks may continue to act as such during the pleasure of 
the judges of election.” 

Now, sir, I undertake to say, that you might as 
well assume that, when this Congress adjourns, 
you have vacated your office as Speaker of this 
House; you might as well say that, when the 
Supreme Court adjourns its session, the judges 
are fundi officio, as to say that the judges of 
election were out of office when the day of elec¬ 
tion had passed. And you might as well declare 
that the Clerk of this House has lost his office, 
and that the office is vacant when the House ad¬ 
journs, as to say that tliese clerks of the election 
lost their offices when the election was over. The 
law oflllinois, just cited, provides that the judges 














6 


of election shall remain judges, and that the clerks 
shall remain clerks, until their successors are 
appointed and qualified. The judges of elections 
are appointed by the county courts prior to the 
elections, and the clerks are appointed by the 
judges of elections, and both hold their places until 
their successors are installed into office. There 
is no pretense that other judges or clerks had 
been appointed. 

Now, then, I ask you, Mr. Speaker—I ask this 
House, what becomes of the statement of the 
sitting member, that these judges and these clerks 
were irresponsible men, acting without oath and 
without authority? Clearly, sir, by the provis¬ 
ions of the Illinois statutes, from which I have 
read, they were, at the time these supplemental 
returns were made out, really and legally judges 
and clerks of elections. That point, it seems to 
me, is beyond controversy. 

The sitting member has suggested to the House 
that these judges may have been temporarily 
appointed on the day of the election. But, sir, it is 
a sufficient reply to this to say that the presump¬ 
tion of law is, that those were judges regularly 
appointed, unless the contrary is shown. It is 
manifest, then, sir, that those men were acting 
under their oaths of office, tliat these votes were 
carefully recounted, and that from that recount it 
appeared that in the original returns one too many 
votes were allowed to the sitting member, and 
that two too few were allowed to the contestant. 
If that be so, there is, then, an end of the whole 
controversy^ and the contestant was elected by a 
majority of two votes. 

Hut the contestant has not contented himself 
with producing this certificate and the amended 
returns of the judges and clerks, so clear and con¬ 
clusive in their character, but he has, after due 
notice to the sitting member, taken the depositions 
of the judgesand clerks of the elections, and, under 
Oath, they have testified to the correctness of 
these supi'lemental returns. I read from the tes¬ 
timony of those judges. Mr. Hutchinson says: 

“ The ballot-hox was taken by myself on the 2(1 day of 
JIarcli, 18.55, as one of the judges, to the house of Johnson 
J. Ilirch, another of the .nnlgcs ; and in the presenee of E. 
M. Hanks, one of the clerks, and Samuel K. Brown, who, 
in the absence of jMr. Hollingshead, the otlier clerk, was 
njjpointed a clerk j,to tempore, and by their assistance the 
box was unloc ked and the ballot-^ recounted; and at the 
conclusion of the counting Mr. Wyrick, the other judge, 
was sent for and came in and assistml u<. 'J'here was at the 
aforesaid time a careful examination had and recount of the 
ballots, and one liundrcd and forty niitc ballots were found 
in the box, which number corresponded with the number 
of names on tin* poll books, and on that counting vve found 
one hundred and two ballots for William B. Archer, and 
forty-six for Mr. Janies C. Allen ; and on that counting two 
of three ballots which were at first thrown aside were 
counted for William B. Archer, and the other ballot was 
not counted for cither Mr. Archer or Mr. Allen, for the rea¬ 
son that both the names of J. C. Ailcn and W^illiam B. 
Archer were stricken therefrom.'’ 

Mr. Birch says: 

“Mr. Hutchinson, one of the judgc.s, Mr. Hank.s, one of 
the clerks, Samuel R. Brown, who acted as clerk jrro tem¬ 
pore in the absence of Mr. Hollingshead, an absent clerk, 
and myself, one of the judges, proceeded, at my house in 
Jhvingston, on the 2d March, 18.55, to unlock the ballot box 
and recount said votes, having sent for Mr. Wyrick, the 
other judge of said election, who arrived before we were 
done counting the same ; when we carefully recounted the 
ballots, and found one hundred and fortynine, as before, 
one hundred and two of which were for VV. B. Archer, and 
forty-six for J. C. Allen. We now found that one more 
vote was marked for Allen than lie received, or appeared on 


the tickets. There were, on the recounting, two votes that 
were not counted for either at the first count, that were 
now counted for W. B. Archer, and one that was not 
counted for either candidate at either the counting or re¬ 
counting, by reason of the names of both Arclier ami Allen 
being scratched off; which said ballot.s are the same that 
are now attached to the deposition of H. H. Hutchinson, 
when we made a corrected return, and sent the same to the 
county clerk on the Sth March, 1855.” 

Mr. Wyrick says: • 

“ When I arrived at the house of IMr. Bircli, they had 
finished the counting except three disputed tickets, being 
the same that were thrown aside at the first counting, one 
of which was thrown aside as on the first counting, having 
the names of both candidates scratched off; the other two, 
after a careful examination, were given to W. B. Archer, 
making one hundred and two votes for W. B. Archer, and 
for J. (h Allen, forty-six, there having been, on the first 
count, one vote more tallied for J. C. Allen than he actually 
received.” 

The testimony of Hollingshead and Hanks is 
to the same effect, and I will not take up the time 
by reading it. 

But still another count was made. And be it 
remembered that these counts were all made be¬ 
fore the Governor had issued his certificate to 
any member of this Congress from Illinois. The 
third count occurred on the 14th of April. What 
was the result of it? 

Mr. Birch says: 

And when we had made out said return, [the amended 
return of March 2, 1855,] we puttlie ballots back in the box, 
and locked it up. I took and kept the box, and Mr. Hutch¬ 
inson kept the key. The box remained in my possession 
until the May election, 1855, when Mr. Hutchinson and 
my.self opened it and took out the ballots, and wrapped 
them up carefully in a paper, and tied them with a string, 
until the box was returned the next day, when they were 
again put into it, and the box locked up, and there remained 
until all the judges .and clerks were present, on yesterday, 
when the box was again opened and the votes recounted, 
with the s.ame result .as on the second counting, and I <ani 
confident that the ballots h.aye not been altered since they 
were voted at the election.” 

Mr. Speaker, I give the testimony on this 
point in full, and in the very language of the wit¬ 
ness, in order to do away with the impression 
sought to be made by the speech of my colleague, 
that there was some hocus 'i)ocus in regard to these 
recounts. The testimony cannot be mistaken; 
and, if gentlemen consider it dispassionately, 
there will be little doubt as to what determination 
they will make of this case. 

Mr. Hutchinson testifies that, after the count 
on the 2d March, 1855: 

“ The ballots and poll book were carefully gathered up, 
put in the ballot-box, locked up, and delivered into the pos¬ 
session of John.sou J. Birch, and 1 retained the key myself. 
They were again on this day (April 14, 1856) examined by 
myself, David Wyrick, and Johnson J. Birch, the judges, 
and Mr. Elza M. Hanks and James Hollingshead, the clerks 
of said election ; and at said examination there were found 
one hundred and forty-nine ballots in the box, and one 
hundred and two of them were for William B. Archer, and 
forty-six for Mr. Allen.” 

Mr. Wyrick says: 

“On the 14th April, 18.55, Mr. H. H. Hutehin.son, J. J. 
Birch, and myself, as judges, and James Hollingshead and 
E. M. Hanks, the clerks of said election, again proceeded 
to meet at the court-house in said county, to recount the 
votes .aforesaid, with the same result, after a careful exam¬ 
ination, .as on the 2d of March, A. D. 1855.” 

Mr. Hollingshead testifies to the same facts. 
So does Mr. Hanks. 

Now, sir, what can be said, I ask, in regard 
to this accumulation of testimony, in no way 









7 


Conflicting, dear, decisive, and to the point? It 
settles, beyond cavil qf doubt, the fact, that tlie 
contestant is entitled to two more votes than he 
was allowed in the first returns of the Livingston 
precinct, and that he has, at least, a majority of 
two votes in the district. But, sir, it is argued 
here by my colleague, [Mr. Allen,] that these 
ballots may not be the same, that there was no 
law in regard to their being kept, and that the 
boxes may have been opened. Sir, the question 
is not whether there was any law in regard to 
the manner in which the ballots should be kept, 
or even any law requiring them to be kept at all; 
or whether this ballot-box was kept in legal cus¬ 
tody? but the question for the House to decide 
is, were those ballots kept 7 Were they truly 
kept—kept safely? or, in other words, are they 
the same ballots which were cast at the election ? 

Now what is the testimony upon that point? 
I have read, in discussing another point, the tes¬ 
timony of several witnesses, bringing out inci¬ 
dentally some facts in regard to the keeping of 
the ballot-boxes and the ballots. Listen to the 
evidence. This is what Mr. Birch says about it: 

“ Question second. At the conclusion of the first counting 
did you, in pursuance of the sixteenth section of the act of 
1849, in relation to elections, proceed to place the poll list 
in the ballot-box, lock the same up, and put the seal of one 
or more of the judges of said election thereon, so as en¬ 
tirely to cover the opening in the lid or top of said box, and 
deliver the key to one of said judges, and the box to another ? 
and if so, state whether the judge in whose possession the 
box was placed had any means of opening the same without 
force } 

“ Jinsv)er. I did ; and placed also in the box, at the same 
time, the ballots, and a coj)y of tlie certificate and tally- 
paper; that the fastening on the under side of the lid was 
adjusted, and the box then locked; and when so fixed, 
nothing can get into or out of the box without force, unless 
the box should first be unlocked. Mr. Hutchinson, the 
judge into who.se possession the box was delivered, had no 
means, to my knowledge, of getting into the box, bat after- 
W'ards obtained a key, with which he could unlock it, as he 
states. I believe the ballots have been carefully kept, and 
that they were the same voted at the election.” 

Mr. Hutchinson says: 

<< Question fourth hy Mr. Archer. State what was done 
with the ballots alter they were counted, and in whose pos¬ 
session they were placed ? 

Answer. Tlie ballots were placed in the ballot-box, and 
locked up, and the box put in my posses.«ion, and not 
opened, to the best of my knowledge, until the 2d day of 
March, 1855; I kept the box carefully until the 2d of March, 
1855.” 

Mr. Wyrick says: 

“ The ballots, one poll-hook, and one tally-paper, were 
put in the ballot box, and then the box was locked up, 
w'hich Mr. Hutchinson took home with him.” 

Another witness states that the opening of the 
box, through which the ballots were received, was 
also fastened, so that nothing could be either put 
into, or taken out of, the box, unless the lid 
of the box was forced; or, in other words, that 
precisely the same steps were taken in regard to 
the ballot-box, which the law requires shall be 
taken at any temporary adjournment during the 
day. The gentleman behind me denies my state¬ 
ment, and suggests that the laws of the State 
require one man to keep the ballot-box, and an¬ 
other man the key, during a temporary adjourn¬ 
ment on the day of election. What I stated is 
true, and that is precisely what was done in this 
case. One man did keep the box, and another 
the key. 

Mr. STEPHENS. The evidence is, that the 


key was lost. There is no evidence that the indi¬ 
vidual who took the key, kept it. The evidence 
shows that there are two keys which unlocked 
the box. , 

Mr. NORTON. Yes, sir, Mr. Hutchinson kept 
the box, and Mr. Birch kept the key. That key 
was lost; and no other key has ever been heard 
of which would unlock the box, except the one 
procured by Mr. Hutchinson on the 2d of March, 
when the box was opened for a recount. 

Now, let me ask the gentleman from Georgia, 
what other or greater precautions could have 
been taken for the safe-keeping of the ballots? 
What pretense can there be that they were not 
so kept? What chance there could be for the vio¬ 
lation of the ballot-box by anybody, without the 
knowledge of Hutchinson? What ground of 
suspicion, even, that any one else had a key with 
which the box could be opened ? I put it to him 
as a lawyer to say whether the presumptions are 
not all the other way ? 

Mr. STEPHENS. That comes directly to a 
material point, and I answer the gentleman with 
pleasure. The key might have been stolen by 
some person entirely unknown to the officers. 
The fact is, that it was lost, and has never been 
found; and there is a possibility that somebody 
might have got into the box with it. The testi¬ 
mony does not exclude the possibility. 

Mr. NORTON. Yes, sir; it says that the key 
was lost. There is no pretense tliat it was ever 
found, or that it was ever in the possession of 
any one afterwards. 

Mr. STEPHENS. It only says that it went 
out of the possession of one of the judges of the 
election, and he does not know where it went. 
That is the only testimony that it was lost. He 
put it away and somebody got it—he does not 
know who. 

Mr. NORTON. There is <not a particle of 
testimony to show that anybody ever got it. 
The evidence is unequivocal, not that anybody 
got it, but that it was lost. Possibility ! possi¬ 
bility ! Why, sir, possibilities like this would 
not serve to save men from the gallows if on trial 
for murder. I put it to the common sense of this 
House, if, upon a charge of larceny or forgery, 
or of passing counterfeit money, a possibility no 
stronger than this would acquit a man ? Never, 
sir, never. There is not one case in fifty where 
stronger proof of the safe-keeping, or the iden¬ 
tity of the coin or bills upon which a criminal 
charge is predicated, is produced in a court of 
justice, than is brought forward in this case. 

Mr. STEPHENS. I stand distinctly upon a 
point of law. The law says the box shall be put 
in the hands of one of the judges, and the key in 
the hands of the other. That is a requisition of 
law. The testimony is, that the key went into 
the hands of one of the judges, who swears that 
it was lost. When the key was lost, might not 
somebody have got it? Is the requirement of the 
law answered? Is there not a possibility that 
somebody got it? The object of the law was, 
that there should be no possibility, by one hold¬ 
ing the box, and another the key. I say, sir, 
that the testimony is, that the key was lost; and 
when that is established, the possibility is that 
somebody might have got it. And that is the 
argument. 

Mr. NORTON. The gentleman argues that 









the provision of the election la^v governing the 
disposition of the box and the key, on tlie day of 
the election, should be carried out strictly in a 
case like this. Xow, 1 ask you, suppose, on 
election day, for which alone this law was en¬ 
acted, that the box should be placed in the hands 
of one of the judges, and the key in the hands of 
another, and by any accident that key should be 
lost by the man in possession, while going from 
the place of election to his dinner: will any one 
here contend that on that account the ballots in 
the box should be rejected, and the election set 
aside: Suppose he were robbed, or drowned, 
or should abscond: must the ballots be rejected? 
The gentleman says, “ the box should be placed 
in the hands of one, and the key in the hands of 
another.” Very well; precisely that was done. 
The box went into the hands of Mr. Hutchinson, 
and the key into the hands of Mr. Bi.rch. 

But, sir, I need not spend time upon this. The 
proof is clear and conclusive that the ballots icere 
safely kept. But, besides all this, the evidence 
of all the judges and clerks is, that the disputed 
ballots icere recognized and identified on the second 
count —recognized and identified as the same bal¬ 
lots had under consideration on the night of elec¬ 
tion. 

But my colleague [Mr. Allex] asks, “How is it 
that these judges could examine these ballots so 
much more accurately four months after the trans¬ 
action, and in the night time, than they could on 
the day of election, under the light of the noon¬ 
day sun?” My colleague musr have forgotten: 
the proof is, that the first count was in the night 
time, whilst the second and third were by day¬ 
light ! 

My colleague complains of the loss of the two 
ballots since they reached here. Sir, the con¬ 
testant laments it too. He was at great pains to 
bring them here, and has endeavored to have 
them found, but in vain. 

My colleague inquires how Mr. Archer could 
have learned that there was a mistake in Living¬ 
ston precinct? There was no difficulty in that. 
A bare comparison of the poll-book with the tally- 
list on file in the clerk's office would show that, 
to any one who also understood that three votes 
had been rejected. 

My colleague complains that he had no notice 
of the recount. It was not necessary that he should 
have. He had notice of the taking of depositions, 
when the result of the recount was proved, and 
he was present by his attorney. 

A few words now, Mr. Speaker, as to the ille¬ 
gal votes, of which much has been said, and I 
have done. 

I concede that nothing has been shown by the 
contestant in regard to Towel’s vote. 

In regard to James Cowden,! am satisfied that 
he was not a legal voter; and that he did vote for 
Allen. It is true, that part of the testimony is 
hearsay; but he could not be compelled to testify; 
his evidence would criminate himself. The poll- 


[ books show that he voted. It is sufficiently proved 
I that he was underage. H#etated again and again 
' that he voted for Allen—stated so when it was 
!; against his interest. It is also proved, and it is a 
i part of the resgesta, that he was actively engaged 
j in electioneering for Allen by Mr. Ruckur, who 
! swears that “ the whole Cowden family, from 
Genesis to Revelations, electioneered for Mr. 
i Allen—I mean the male portion of them.” 

Joseph Lowry swears that he voted for Archer. 
My colleague contends that his vote should be 
rejected, on the ground that he had not been a 
resident of the State for a year previous to the 
election. It would be a sufficient reply to this to 
say that the only evidence on this point is that 
taken in April, 1855, and which my colleague 
earnestly contends should not be allowed for 
want of notice to him. This objection goes to the 
, whole evidence, if to any of it. But I submit 
I that the sitting member has not shown Lowry to 
have been anon-resident. Lowry says: “ I was 
in the State of Illinois in the fall of 1852, and 
stayed some three or four weeks, and left two 
shirts, and never returned until the 6th of March, 
1854.” The question of residence is peculiarly 
one of intention. It may be obtained as well in 
four weeks as four years. If a party settles in a 
place with the intention of remaining, he gains 
a residence at once. That a party leaving the 
State with the intention of returning, does not lose 
his residence, is too clear a prcmosition to need 
any argument to sustain it. That Lowry left 
with the intention of returning is manifest, and 
that he actually returned eight months before the 
election is clearly proved. I submit, then, that 
his place of residence was in no way affected by 
his temporary absence. He is to be regarded as 
a resident of the State from the fall of 1852. In¬ 
numerable cases have occurred in Illinois, where 
parties have thus left the State for California, 

, or other places, and on their return have been 
allowed to vote without question. I submit, then, 
that, even assuming the deposition in this case to 
be of any validity, it wholly fails to show that 
Lowry was not a legal voter. 

Air. Speaker, how stands the case now? If 
you reject both the votes of Lowry and Cowden, 
i then the case is left precisely where it was after 
the correction of errors in Livingston precinct— 
being two majority for Archer. If you reject the 
vote of Lowry alone, which I think you cannot 
do, then Archer is elected by one majority. If 
, you reject the vote of Cowden alone, then Archer 
is elected by three majority. 

In any view, Mr. Speaker, which I have been 
able to take of this case, the contestant is clearly 
entitled to his seat. To this conclusion my mind 
has been irresistibly forced by a careful con¬ 
sideration of the evidence. I have no appeals to 
make to this House, and least of all, on a question 
like this, any partisan appeal. I only ask this 
House to do that which" shall be in accordance 
with truth, justice, and right. 







